The right way to draw up your employment contracts!


Dear Reader

You must give your employees, in writing, the terms and conditions of their employment. This document can take the form of a letter of appointment, or you can create a more formal contract of employment – the form doesn’t matter it’s the content that’s important. Getting your employee to sign the document avoids disputes about whether or not it was given and what it contains. You must do this when the employee  starts employment and you must retain the document for at least three years after termination of the employment relationship (Section 29 of the BCEA). 

You must also update this employment document and provide the employee with a new copy when:

TIP: Better late than never! Check all your personnel records and draw up the employment documents now, even if your employees have been working for you for years.


Even part-time staff must have a contract

This law applies to you if your employees are temporary or part-time, even if they:

In other words, anyone who qualifies as an ‘employee’ should receive this document from you. That's why I've put together a FREE special new report: Policy Toolkit: Policies to hire, fire and manage your employees to get your started with implementing the correct procedures from day one.

Download the PDF for free now:

Special report: Policy Toolkit: Policies to hire, fire and manage your employees 

Safeguard your rights as an employer by using this policy toolkit. It will ensure that if you do land up at the CCMA for employee contractual issues - you've got a better chance of winning.

We'll also show you how to:

  • Formalise your disciplinary policy; and
  • Implement a leave policy and procedure.

 

Three easy steps to protect yourself from legal comebacks

The South African labour laws offer your employees protection, but they also allow you a degree of flexibility in what you agree with your employee – so you need to be proactive and protect yourself.

Do this by taking these three steps today:
  1. Design an employment agreement (whether it’s in the form of a contract or a letter) that complies with the law, but fits with your business requirements.
     
  2. Make it a requirement for the selected job applicant to sign the contract BEFORE commencing employment
     
  3. Explain (with the aid of an interpreter if necessary) the contents of the contract to the employee/applicant in a language he understands. This is required by law.
 
By doing so, you will avoid the following situation...

You hire Nathan as your editor. He starts work on Monday without signing his employment contract. You ask him on Thursday to sign the document, but he refuses because he doesn’t agree with the restraint of trade clause. You threaten to cancel the contract. He threatens to go to the CCMA because, having started work, he has automatically become your employee.
 
In this situation Nathan is right – you can’t cancel his contract. If you want him to sign, you will have to take out the restraint clause. Rather ensure Nathan signs the contract – including the restraint of trade clause – before you appoint him or he commences employment.

If he refuses to accept the terms of employment, you don’t have to employ him, because he has neither signed the contract, nor begun work.


Example

As South African labour laws offer your employees more protection than they offer you, you need to be proactive and protect yourself!
 
By law, there are 17 elements that must be contained in the employment contract. Protect your business by including another nine vital points in the contracts. Labour Law for Managers Practical Handbook tells you exactly what they are.

 

How can you benefit from this practical handbook?

See for yourself how valuable this product is to you as an employer. It’s clearly different from other jargon filled, technical products on the market. Order it today and I'll give you a 30-day money-back guarantee. You will definitely find it worthwhile, even if you have a labour lawyer. It’s simpler, faster and much cheaper to look up something than to wait until your lawyer calls you back.
 
We wish you all the best in your investigation of these new labour strategies.
 
Yours Sincerely

Taryn Strugnell
Managing Editor
 
 
PS: If you reply quickly, you will also receive an invaluable copy of "Say You're Fired and Make it Stick!" In this groundbreaking booklet, you'll find out why you shouldn't insert long notice periods into employment contracts; the legally justified reasons you can use for dismissing an employee; all bargaining council contact numbers; and much more.

  Yes! I want to give employees
legal contracts!


You want to dismiss an employee but do you know how to go about it?

How do you actually write “Mr … was lazy and unreliable” in a legally correct way when giving a reference? And in such a way that the employee cannot sue you later! Believe it or not:
 
Even a “!” in the wrong place may be the reason that you lose a case at the CCMA. The frustrating thing is, it’s exactly such petty errors and similar loopholes in the labour law that mean employers lose 51% of all CCMA cases.
 
These technicalities don't apply to references only, but also to written warnings and dismissals.

 
But how do you dismiss correctly? How do you make a dismissal stick, even if it goes to the CCMA?

Simply read on, for your own benefit, to see how you can successfully effect dismissals that are 100% legally watertight and will hold up at the CCMA. You’ll find a selection of the most important issues surrounding dismissals, taken from the Labour Law for Managers Practical Handbook.

We show you how you can justify your dismissals and protect your business completely. 29 experienced labour law consultants give you hands-on advice on the right strategy for making your dismissals stick.
 
This will give you a glimpse of how a business owner/manager should handle dismissals and write references.
 
The comprehensive Labour Law for Managers Practical Handbook gives you all the details you need for maximum protection in labour-related problems. You will find, for example:

 

Don't get done on technicalities!

In a case brought before the CCMA, the employee was a manager for a security firm. He testified he had been held up by armed robbers at the Qwa-Qwa branch of his employer's  company, where he was robbed of money and a company vehicle.
 
He subsequently opened a criminal case at the local police station. Five days later, he phoned the police station to enquire about the progress of the case. The police told him to wait where he was, at the premises of the employer.
 
The police arrived a short while later and arrested the employee, presumably in connection with the alleged robbery. The employer then dismissed the employee on the spot.
 
In the criminal case, the employee was found not guilty, and he then returned to work but his employer confirmed his dismissal.
 
 
The law favours the employee!

The CCMA Commissioner held that the dismissal was unfair, because the employer didn’t dispute the employee's testimony at the CCMA arbitration hearing, and in addition, dismissed the employee without a disciplinary hearing.
 
In other words, the employer couldn't show good cause (substantive fairness) and hadn't followed the correct procedure.
 
The Commission awarded the employee 12 months' salary as compensation.This is a classic case of what happens when an employer ignores the very basic requirements in any disciplinary procedure. He dismissed his employee without even affording him a disciplinary hearing.


 
Five vital elements of substantive fairness

Warning: The dismissal should pass (and you must prove) all of the following tests to ensure substantive fairness:


Checklist: Disciplinary hearing

Six key elements of an effective and legally compliant disciplinary hearing


Procedural fairness is where it gets tricky…

Refer to the Labour Law for Managers Practical Handbook for more details on when to give warnings, and when they're not needed; how to present evidence at a disciplinary hearing; finding a verdict based on the 'balance of probabilities'; aggravating and mitigating circumstances; dealing with the appeal; and so much more.
 
 
Important reasons why you may need to dismiss 

You want to reduce costs... So you decide to retrench

When a Labour Court judge presides over a retrenchment case brought by your employee (or a trade union on behalf of your employee), he must look at a number of factors when deciding whether you retrenched the employee fairly:
 
 
Four factors that determine fair retrenchment

Whether you: 
  1. Had a sufficient reason for the retrenchment.
     
  2. Used a fair criterion when choosing the employee to be retrenched.
     
  3. Consulted fully and in good faith with the employee or his trade union before making the retrenchment decision.
     
  4. Disclosed to the employee or union all the information to be used for purposes of consulting on retrenchment.

The ugly consequences of unfair dismissal

In a case brought before the Labour Court, it found that the retrenchment was unfair. The employee, Mr Manyaka, had been a computer operator. Before he was retrenched the employer hired another employee into a new computer operator post, but at a higher level.
 
 
Sick leave – when do you NOT have to pay?

An employee is entitled to 30 days’ paid sick leave if he works five days a week, and 36 days’ paid sick leave if he works six days a week.
 
You don’t have to pay an employee for sick leave if the period of absence is longer than two consecutive days, or if he has been absent on more than two occasions during an eight-week period, unless he gives you a valid medical certificate from a registered medical practitioner. 
 
The Court found that the employer, instead of retrenching Mr Manyaka, could have trained him for the higher level computer operator post. The Court therefore reinstated the employee with back pay and granted costs against the employer (Manyaka vs Van de Wetering Engineering 1997 11 BLLR 1458).
 
 
Insubordination vs insolence
 
Refusal to obey an instruction versus “just plain bad attitude”

It’s easy to confuse the two, because in practice, they frequently occur simultaneously. Insolence is disrespectful behaviour towards the employer. Insubordination is the refusal by an employee to obey a lawful and reasonable instruction from his superior.
 
Tip: If an employee is both insubordinate and insolent, the allegations forming the basis of his disciplinary hearing to be convened must include two charges, i.e. insubordination and insolence. This will strengthen your case, should you wish to dismiss the employee.
 
 
Not all cases of insubordination justify dismissal!

If the employee’s refusal doesn’t have serious or significant negative consequences for the employer, a written or final written warning would be more appropriate. The Code of Good Practice: Dismissals, stresses that only gross insubordination warrants dismissal on a first offence.
 
One scenario where you may be able to dismiss (and there are at least six other scenarios outlined in the Labour Law for Managers Practical Handbook) is in circumstances where the employee makes it clear that he has no intention of ever complying with future instructions.
 
 
If you follow the correct procedure, you can win your case!

Case example: The employer charged and dismissed the employee for gross insubordination in that she failed to comply with the company clocking-in procedure, which obliged employees to clock in and out when taking tea breaks.
 
The employee conceded that she was aware of the company rule requiring employees to do so. She had received a prior final written warning for the same offence. The dismissal was held to have been fair (SACCAWU obo Ngobese vs Pick ‘n Pay KN20877-02).

 
What is desertion?

Desertion occurs when an employee doesn’t come to work without taking leave and without the intention of returning to work OR without informing you of the reason for his absence and without the intention of returning to work. However, the problem is you don’t always know whether he intends to return. For this reason you must implement a desertion procedure designed to protect your business (see sample policy in the Labour Law for Managers).
 
 
Abuse of email/Internet facilities

Your communication systems are central to the effectiveness of your business, but the use of the Internet has become a huge problem, with many employees abusing this business tool. The potential consequences for you, the employer, are dire! This could cost you thousands of rands in lost working time, legal expenses and damaged electronic systems.
 
 
 
‘Privacy’ can be a thorn in your side!
Because of the legal protection of an employee’s right to privacy, you need to tread very warily when designing effective management tools of your e-communications system. However, there are actions you can take, which we cover in chapter E02 in Labour Law for Managers:
 
 
Dismissal from A to Z

The following reasons for dismissal are described in detail in Labour Law for Managers – Practical Handbook:
  • Absenteeism; 
  • Alcohol addiction & abuse;
  • Breach of restraint of trade agreement;
  • Desertion;
  • Disability;
  • Email/Internet abuse;
  • Failure to observe security and safety regulations;
  • Gross incompetence;
  • Gross negligence;
  • Illegal striking;
  • Incapacity;
  • Insubordination;
  • Moonlighting;
  • Poor performance;
  • Refusal to work;
  • Retrenchment;
  • Sexual harassment;
  • Sleeping on duty;
  • Theft; and
  • Time keeping.
 


Strikes can cripple your business – find out how to prevent them
 
Strikes can result in loss of productivity, angry customers, financial losses, injury, damage to property and soured employee relations. Find out how to minimise and deal with strikes at your workplace.

 
Who has the right to strike?
All employees have the right to go on strike. This right springs from the constitutional right to protest and engage in trade union activity (Chapter 4 of the LRA 66 of 1995, and Section 23 of the Constitution of South Africa No. 109 of 1996).
 
Warning: Employees do not have to be part of a trade union to go on strike. Previously, for a strike to be legal, 50% + 1 of your employees first had to vote in favour of it. But this requirement for a majority ballot has been scrapped. Also, the concepts of legal and illegal strikes have been scrapped. Instead, we now have the concepts of protected and unprotected strikes.
 
Warning: You can never dismiss employees for going on a protected strike because the employees are ‘protected’ by law from dismissal (Section 67(4) of the LRA). In fact, such a dismissal will be regarded as automatically unfair (Section 187 (1) (a) and (b) of the LRA). 

 
Make 100% sure you know whether your employees’ strike is protected or unprotected!

If you incorrectly assume that the strike is unprotected and you dismiss the strikers, the cost to your business could be huge.
 
If the Labour Court finds the strike to have been a protected one, not only will you have unfairly dismissed your workforce, but the dismissal may be found to be automatically unfair. This means you may have to:
 

12 Steps on how to deal with protected strikes

Step #1: Make absolutely sure the strike is a protected one. This is because you cannot use court interdicts or dismissals to deal with protected strikes.
 
Step #2: Make sure the employees understand why you are sticking to your position. Meet with them or issue notices explaining the rationale of your decision on the matter. Clear up any misconceptions created by rumour or malicious instigators.
 
Step #3: Negotiate: Compromise on those demands that are fair and you can afford to compromise on. For example, consider agreeing to shorten the working hours of those employees not directly involved with production.
 
Step #4: One option is to sit it out. In other words, let the employees strike and continue with your business.

You can only consider doing this if you:
a) Are definitely not in a position to give into any of the strikers’ demands;
 
b) Have been unable to settle the dispute through negotiation as per steps 1 and 2 above;
 
c) Are sure you have made reasonable counter proposals, which the strikers have rejected. That is, even if you’ve tried to negotiate, you should relook at whether your proposals are reasonable or could be improved;
 
d) Are in a strong financial position and can keep production going.
 
Step #5: You have the right to take industrial action known as a 'lock-out'. This is where you prevent employees from coming to work by barring them from entering your premises. Lock-out the strikers only if this is really necessary to prevent damage, violence or obstruction of operations.

An employer has the right to lock-out its employees only after it has followed the above procedures required for a protected strike. Only then will it be a protected lock-out.
 
Step #6: Bring in replacement labour where this is practical. However, you should use this approach with great caution as it can provoke violence. You'll need to provide in advance for protective security to prevent attacks on the replacement workers.
 
Step #7: Temporarily evacuate non-strikers if they are in danger. Note: You'll probably have to pay the non-strikers if you evacuate them.
 
Step #8: Pay special attention to protecting lives and potentially dangerous or strategic installations such as fuel depots or electrical generators.
 
Step #9: Do not discipline or dismiss any employees for having gone on a protected strike.
 
Step #10: Avoid provoking the strikers unnecessarily, e.g. do not taunt them by calling them names or doing a mock toyi-toyi.
 
Step #11: Deal with sabotage, blockades, picketing or other disruptive or prohibited conduct during strikes in a firm but restrained manner. You may need to bring in police or security personnel. Try to do so in such a way that their presence is preventive. Give instructions that no excessive force is to be used.
 
Step #12: Never pay employees for the period they were on strike! The employees are allowed to strike for as long as they want, but will be unable to hold out forever because of the loss of income.
 
Order the Labour Law for Managers Practical Handbook today, and use all the expert advice!
 
 

Nine golden rules of Performance Appraisals
  1. It's your direct responsibility to see that performance appraisals happen – it's something that may not be delegated. Only you can adequately assess your employee’s performance.
     
  2. It focuses on the individual’s performance, which is measured against the standards set out in the job description.
     
  3. It focuses on proven performance, not potential.
     
  4. A performance appraisal is never a psychological appraisal, nor should psychologists be allowed to draw up the appraisal document. It's based solely on the job description.
     
  5. NEVER reward poor performance.
     
  6. If it can’t be measured, then it can’t be managed. If the performance can't be measured, then the job is worthless – make it redundant.
     
  7. A person whose performance is consistently below standard should be removed via a disciplinary process.
     
  8. Appraisals should be viewed retrospectively, because emphasis is placed on what has occurred in the past. It’s pointless trying to appraise what might not have been done.
     
  9. Discussion of performance is separate from a salary review. The appraisal should occur at least three months before the salary review. This gives the employee time to get back on track, should it be necessary.
 
Forget the paperwork – it isn’t necessary!
 
Avoid these two traps:

Recruitment: 18 Discriminatory selection practices – avoid them!
 
If you're not careful, you could be found guilty of unfair discrimination on any one of the 18 grounds listed below:
 
  • Race
     
  • Gender
     
  • Political opinion
     
  • Trade union affiliation
     
  • Religion
     
  • Pregnancy
     
  • Marital status
     
  • Family responsibility
     
  • Ethnic or social origin

  • Sexual orientation
     
  • Age
     
  • Disability
     
  • HIV status
     
  • Conscience
     
  • Belief
     
  • Culture
     
  • Language
     
  • Birth

What information will you find in the Labour Law for Managers – Practical Handbook?
 

Here are just SOME of the other topics and issues covered in the Handbook!


All tips, recommendations and information in the Labour Law for Managers Practical Handbook are 100% legal, and checked by two independent consultants.
 
 
In each case you'll receive:


  
 
With the Labour Law for Managers Practical Handbook you will find:
Our Panel of Experts

Lizle Louw 

Head of Employment Law at ENSAfrica
Lizle is an admitted attorney and conveyancerLizle specialises in employment law, occupational safety and mine health and safety. She acts for a diverse range of clients in the mining and retail industries. Lizle’s general practice includes litigation in the CCMA, Bargaining Councils, Labour Court and Labour Appeal Court, drafting of employment and safety related policies and training of line managers on all employment related matters. 

Lizle holds the following qualifications: BComm Law (University of Johannesburg) LLB (University of Johannesburg) Certificate in International Criminal Law (University of Antwerp)

 
Taryn Strugnell - Managing Editor

Senior Product Manager
Taryn networks with the top labour, HR and employment equity specialists in the industry every day. She gets all the inside information on what’s happening with labour law changes and makes sure you’re the first to know what’s happening in the world of labour laws. Her sole purpose is to consult with her clients, giving them tips, tools and case law studies to make sure you’re in the loop with labour law changes and every day employee problems you might encounter.
 
And because of all of this, and her access to the best of the best in the labour and HR realm, she really should be the first name that pops into mind when dealing with employee and labour problems. 
 

Kirstin van Bever Donker 

Independent Consultant
Kirstin’s career began in early 2005 when, after moving to South Africa from Australia, she joined Guy & Associates, a firm specialising in employment law and industrial relations. In 2007 Kirstin and her family moved to the United States of America. Having always been a strong believer in the power of having a diverse skill set and being a lover of mathematics and physics, Kirstin used her time in the USA to cultivate these skills completing graduate qualifications in both disciplines. She now consults independently on labour and HR matters in South Africa.

Wouter Van Heerden 

Independent Consultant
Wouter has a B.Com Honours Degree, Labour Relations. Previously he worked for a well-known Employers Organisation in North West where he gained valuable experience in all aspects of HR and Labour Law.
 
He currently works for a national company as HR Manager – and handles BBBEE, Skills development, all IR related matters, Performance Management, Payroll Control and supervision, Wellness, Employment Equity, SHEQ Issues, Recruitment, Operational Issues.
 
Ulrich Stander
 
Managing partner, co-founder and director of Maserumule Consulting
After working for some time in a senior legal position in the corporate environment, Ulrich commenced practice as an employment law and employment relations lawyer. He has participated in various sessions on the Harvard Law School Negotiation Programme.

Ulrich co- authored a book on employment law in practice and occasionally presents guest lectures on employment law and employee relations programmes at the Stellenbosch University Graduate School of Business.

Marleen Potgieter

Managing Director at Equity Works
Marleen assisted in the drafting of the Employment Equity Act and her specialties include employment structures in the workplace, mediation and dispute management.

As an HR Consultant, Marleen’s focus is to facilitate and enhance relationships between different groups. She specialises in conflict management, with specific focus on best practices to overcome the challenge of resistance from employee when it comes to EE implementation.

Johria van den Bergh
 
Admitted advocate 
Johria has been involved in labour litigation for more than 11 years at the Labour Court, the CCMA, the MEIBC and the GPSSBC. She has assisted companies and small businesses in re-evaluating their disciplinary codes, disciplinary procedures and training the staff in the proper application of the disciplinary process especially in light of the new decision in favour of the CCMA, a proper application of the disciplinary process has become a matter of cardinal importance.
 

  Yes! I want to give employees
legal contracts!


And this is just the start

The Labour Law for Managers Practical Handbook comes with an essential updating service, the special report: Say "You're Fired!" and Make it Stick, access to the 24/7 expert labour and HR advice helpdesk and five bonus labour and HR resources to help you stay out of the CCMA.

You'll also immediately receive FIVE FREE BONUS GIFTS to help you take the hassle out of managing, hiring and firing employees!

  

Combined, these gifts have a total value of R1 200 - Yours absolutely free


To welcome you as the newest subscriber, you’ll get instant access to help solve all your labour and HR problems, with these five FREE gifts and services:

  1. You’ll find out how you can show an employee the door without landing up at the CCMA.
     
  2. You have access to a personalised Labour and HR Helpdesk service where a team of labour law experts are available 24/7 to answer your specific questions.
     
  3. Little-known ways to reduce absenteeism, so you can put a stop to employees abusing time off.
     
  4. How to get rid of that employee who isn't performing.
     
  5. Policy Toolkit: Policies to hire, fire and manage your employees.

 

Total Value R2 999

But you only pay R999 
(And it's backed with my 100% satisfaction guarantee) 

 

The Labour Law for Managers Practical Handbook is developed by labour and HR experts, who individually charge their clients over R1 000 an hour, but here you pay just R999 for their 24/7 advice.

 

The full subscription is valued at only R2 999…. which is a pittance, if you think what paying an employee 24 months' salary if you lose at the CCMA will cost you!


Today, you can secure the full subscription for as little as R999 excl VAT - a massive R2 000 saving.

 

Your entire package includes:

The 558 page Labour Law for Managers Handbook Valued at R1 799
Essential updating service* Pay as you go
Say "You're fired!" and make it stick Valued at R199
Free expert advice to solve your labour and HR problems Valued at R599
Little-known ways to reduce absenteeism Valued at R139
How to get rid of that employee who isn't performing Valued at R129
Policy Toolkit: Policies to hire, fire and manage your employees Valued at R129

LOWEST PRICE AND SATISFACTION GUARANTEE: When you subscribe to The Labour Law for Managers Service, you will be billed based on the option you select. The handbook comes with an essential updating service to keep you on top of legislation and new information.
 
*The cost of each update is R249 incl VAT. Remember your right to cancel your subscription within 30 days of initial payment should the service not meet your requirements.

Yours sincerely





Taryn Strugnell
Managing Editor: Labour Law for Managers Practical Handbook

P.S. Here's my personal guarantee to you

EVERYTHING is 100% Satisfaction Guaranteed

If at any time during the next 30 days, for any reason whatsoever, you decide the Labour Law for Manag30 day money back guaranteeers Practical Handbook isn’t for you, simply call or email us and return the Labour Law for Managers Practical Handbook in its original condition.

You will be refunded every cent of the subscription price. 

It doesn’t get any simpler than that.

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The information contained herein is obtained from sources believed to be reliable, but its accuracy cannot be guaranteed. No action or inaction should be taken based solely on the contents of this publication. We do research all our recommendations and articles thoroughly, but we disclaim all liability for any inaccuracies or omissions found in this publication. No part of this publication may be reproduced or transmitted in any form or by means of electronic or mechanical, including recording , photocopying, or via a computerised or electric storage or retrieval system without permission granted in writing from the publishers.